Citation Nr: 0944884
Decision Date: 11/25/09 Archive Date: 12/04/09
DOCKET NO. 06-12 626 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a chronic low back
disorder.
2. Entitlement to service connection for an acquired
psychiatric disorder, to include posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The Veteran served on active duty from December 1967 to
July 1969.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from the Department of Veterans Affairs
(VA) Regional Office (RO) in San Juan Puerto Rico.
The issue of entitlement to service connection for an
acquired psychiatric disorder is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
In-service low back complaint resolved without chronic
residuals; low back symptomatology was not identified for
many years after service. A current lumbar strain is
unrelated to service.
CONCLUSION OF LAW
A chronic low back disorder was not incurred in or aggravated
by active duty service. 38 U.S.C.A. §§ 1110, 5103 (a), 5103A,
5107(b) (West 2002 & Supp 2009); 38 C.F.R. §§ 3.102, 3.159,
3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the relevant laws and regulations, service connection
may be granted for a disability resulting from disease or
injury incurred in or aggravated by active service. 38
U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in
service, subsequent manifestations of the same chronic
disease at any later date, however remote, may be service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2009).
However, continuity of symptoms is required where a condition
in service is noted but is not, in fact, chronic or where a
diagnosis of chronicity may be legitimately questioned. 38
C.F.R. § 3.303(b) (2009). Further, service connection may
also be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d)
(2009).
The Board must determine whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either case, or whether the preponderance of
the evidence is against the claim, in which case, service
connection must be denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
Service treatment records show that the Veteran was seen on
one occasion for low back complaints in January 1968. The
assessment was viral syndrome. His separation examination in
July 1969 showed his spine was normal on clinical evaluation.
Therefore, no chronic low back disorder was noted in service.
After service, VA outpatient treatment records showed that
the Veteran was seen in July 2002 with a history of chronic
back pain of 10 years duration. This is the first incident
of recorded symptomatology related to a low back disorder,
occurring many years after discharge. Therefore, the medical
evidence does not reflect continuity of symptomatology.
Subsequently, a February 2003 high resolution CT scan of the
lumbosacral spine indicated an impression of a small central
bulging disc at L4-L5 indenting the cal sac, diffuse facet
joint degenerative changes, and degenerative changes in the
sacroiliac joints, more prominent on the left side.
In addition to the absence of documented post-service
symptomatology related to the low back for many years, the
evidence includes the Veteran's statements asserting
continuity of symptoms. Specifically, in March 2004, he
stated that he had chronic back pain beginning 20 to 30 years
prior to the examination, dating the onset to the mid-1970s
to mid-1980s. The assessment was chronic low back pain.
The Board acknowledges that lay evidence concerning
continuity of symptoms after service, if credible, is
ultimately competent, regardless of the lack of
contemporaneous medical evidence. Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006).
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").
In this case, the Veteran is competent to report symptoms
because this requires only personal knowledge as it comes to
him through his senses. Layno, 6 Vet. App. at 470. As noted
above, he has indicated that he continued to experience
symptoms relating to the low back 20 to 30 years prior to his
March 2004 examination.
In determining whether statements submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498
(1995). The Board is not required to accept an appellant's
uncorroborated account of his active service experiences.
Wood v. Derwinski, 1 Vet. App. 190 (1991).
In this case, the Board finds that the Veteran's reported
history of continued symptomatology since active service,
while competent, is nonetheless not credible.
First, the Board emphasizes the gap between the Veteran's
discharge from active duty service (1969) and first reported
symptoms of low back pain (2002). As such, the evidence does
not support the claim based on continuity of symptomatology.
See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)
(lengthy period of absence of medical complaints for
condition can be considered as a factor in resolving claim);
see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991)
(affirming Board's denial of service connection where veteran
failed to account for lengthy time period between service and
initial symptoms of disability).
Moreover, the Board finds that the Veteran's reported history
of continued low back complaints since active service is
inconsistent with the other evidence of record. Indeed, while
he stated that his low back complaints began in service, the
Board emphasizes that the separation examination was absent
of any chronic complaints.
Further, the Veteran dates onset of symptoms to different
times. Specifically, in one examination report, in 2004, he
stated that he had the low back complaints, beginning 20 to
30 years ago. In another VA report in 2002, he stated that
the back complaints were of 10 years duration. These
inconsistencies weigh against his assertions of continuity.
Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to
discount the credibility of evidence in light of its own
inherent characteristics and its relationship to other items
of evidence).
In addition, when the Veteran sought to establish medical
care in 2002, he did not report that his low back
symptomatology was related to service or that it was of
longstanding duration. In fact, he noted a 10-year history
of back problems. He did not claim that his disorder was of
long-standing duration until he filed his claim. Even
accepting his statements regarding the longest dates of onset
(a 10-year range of 20 to 30 years ago) dates the onset to
several years after service separation. His silence, when
otherwise reporting his past medical history constitutes
negative evidence. Rucker v. Brown, 10 Vet. App. 67, 73
(1997) (statements made to physicians for purposes of
diagnosis and treatment are exceptionally trustworthy because
the declarant has a strong motive to tell the truth in order
to receive proper care).
The Board has weighed the Veteran's statements as to
continuity of symptomatology and finds his current
recollections and statements made in connection with a claim
for benefits to be of lesser probative value. See Pond v.
West, 12 Vet. App. 341 (1999) (although Board must take into
consideration the veteran's statements, it may consider
whether self-interest may be a factor in making such
statements). Therefore, continuity has not here been
established, either through the medical evidence or through
his statements.
Next, service connection may be granted when the evidence
establishes a medical nexus between active duty service and
current complaints. In this case, there is simply no
competent evidence of record causally relating the Veteran's
low back complaints and related symptomatology to active
service. Of note, no medical care provider has established
such a relationship.
Thus, the requirement necessary to establish a medical nexus
for service connection for the low back disorder has not been
met. Accordingly, the Board finds that a grant of direct
service connection for a low back disorder is not warranted.
The Board has also considered the Veteran's statements
asserting a nexus between his claim and active duty service.
While the Board reiterates that he is competent to report
symptoms as they come to him through his senses, degenerative
joint disease is not the type of disorder that a lay person
can provide competent evidence on questions of etiology or
diagnosis.
Such competent evidence has been provided by the medical
personnel who have examined the Veteran during the current
appeal and by service records obtained and associated with
the claims file. Here, the Board attaches greater probative
weight to the clinical findings than to his statements. See
Cartright, 2 Vet. App. at 25.
In light of the above discussion, the Board concludes that
the preponderance of the evidence is against the claim for
service connection and there is no doubt to be otherwise
resolved. As such, the appeal is denied.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
When VCAA notice is delinquent or erroneous, the "rule of
prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In
the event that a VA notice error occurs regarding the
information or evidence necessary to substantiate a claim, VA
bears the burden to show that the error was harmless.
However, the appellant bears the burden of showing harm when
not notified whether the necessary information or evidence is
expected to be obtained by VA or provided by the appellant.
See Shinseki v. Sanders, 556 U.S. ___ (2009).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the Veteran in March 2005 that fully addressed
all notice elements and was sent prior to the initial RO
decision in this matter. The letter informed him of what
evidence was required to substantiate the claims and of his
and VA's respective duties for obtaining evidence. Under
these circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied as to both
timing and content.
With respect to the Dingess requirements, the Veteran was
provided with notice of the type of evidence necessary to
establish a disability rating or effective date for the
disabilities on appeal in March 2009. Additionally, there is
no prejudice in issuing a final decision because the
preponderance of the evidence is against the claims for
service connection. Any questions as to the appropriate
disability rating or effective date to be assigned are moot.
Therefore, adequate notice was provided to the Veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist a veteran in the development of
the claim. This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary. See
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
In determining whether a medical examination should be
provided or medical opinion obtained, there are four factors
to consider: (1) competent evidence of a current disability
or persistent or recurrent symptoms of a disability; (2)
evidence establishing an in-service event, injury, or
disease, or manifestations during the presumptive period; (3)
an indication that the disability or symptoms may be
associated with service; and (4) whether there otherwise is
sufficient competent medical evidence of record to make a
decision on the claim.
With respect to the third factor, the types of evidence that
"indicate" that a current disorder "may be associated"
with service include, but are not limited to, medical
evidence that suggests a nexus but is too equivocal or
lacking in specificity to support a decision on the merits,
or credible evidence of continuity of symptomatology such as
pain or other symptoms capable of lay observation. McLendon
v. Nicholson, 20 Vet. App. 79 (2006).
After a careful review of the file, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the
Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First,
the RO has obtained his service treatment records. Next,
private treatment records and VA treatment records were
submitted on behalf of the claim. Therefore, the available
records and medical evidence have been obtained in order to
make an adequate determination as to this claim.
Moreover, the Board finds that a VA examination is not
warranted. Given the absence of in-service evidence of
chronic manifestations of the disorder on appeal, the absence
of identified symptomatology for many years after separation,
and no competent evidence of a nexus between service and the
Veteran's claim, a remand for a VA examination would unduly
delay resolution.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance is required to fulfill VA's
duty to assist in the development of the claim. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Service connection for a chronic low back disorder is denied.
REMAND
The Veteran claims entitlement to service connection for PTSD
based upon his service in Vietnam. Primarily due to a change
in law announced by the U.S. Court of Appeals for Veterans
Claims (Court), this matter must be remanded. Clemons v.
Shinseki, 23 Vet. App. 1 (2009).
In Clemons, the Court held in part that the application for
service connection must be read broadly by VA adjudicators to
encompass any diagnoses reasonably within the scope of the
claimed specific disability. The Court noted that "multiple
medical diagnoses or diagnoses that differ from the claimed
condition do not necessarily represent wholly separate
claims," and that because a lay claimant is only competent to
report symptoms and not diagnoses, VA must consider the claim
for disabilities reasonably raised by the description of the
claimant's symptoms. Clemons, 23 Vet. App. at 6-7.
Such is the case here. Although the Veteran is diagnosed as
having PTSD, the record developed since the inception of the
claim indicates the Veteran's continuing report of and
diagnosis of major depression, a mood disorder, and an
adjustment disorder.
Additionally, in an October 2004 VA psychiatric examination,
it is noted that his private psychiatrist diagnosed PTSD and
also evaluated him for Social Security Administration (SSA)
disability benefits, which he was later granted. However, the
SSA records are not in the claims file, and VA has a
statutory duty to obtain these records. 38 U.S.C.A. §
5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2009); see
Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v.
Derwinski, 2 Vet. App. 181, 188 (1992). These records should
be obtained on remand. See also Murincsak v. Derwinski, 2
Vet. App. 363 (1992).
Accordingly, this case is REMANDED for the following actions:
1. Obtain VA clinical records from the
VAMC Sand Juan for the period from
November 2008 to the present.
2. Obtain from the SSA a copy of its
decision regarding the veteran's claim
for SSA disability benefits, as well as
the medical records relied upon in that
decision. Associate those records with
the claims folder.
3. Contact the Veteran and ascertain if
he has any further information to provide
regarding his claimed stressor that he
has not previously provided to VA.
If and only if he is found to have served
in combat or he presents additional
stressor(s) that have been corroborated,
schedule him for a psychiatric
examination, specifically notifying the
examining physician of stressor
corroboration. After conducting any
appropriate interviews and clinical
testing, the examiner is asked to respond
to the following:
(a) Does the Veteran have PTSD caused by
active duty service resulting from a
verified experience occurring during
service - i.e., if the examiner diagnoses
PTSD, the examiner is asked to state the
specific corroborated stressor event or
events experienced during service
pursuant to the diagnostic criteria set
forth in the DSM-IV.
(b) Does the Veteran have any mental
disorder (other than PTSD) to include a
depressive disorder, or mood disorder,
which was caused by active duty service.
(c) In stating his or her opinions, the
examiner must state the medical basis for
any opinion expressed, including with
specific reference to the DSM IV. If the
examiner is unable to state an opinion
without a resort to speculation, he or
she should so state.
4. Thereafter, readjudicate the issue of
service connection for acquired
psychiatric disorder, to include PTSD.
Ensure that all directed factual and
medical development as noted above is
completed.
In the event that the examination reports
do not contain sufficient detail, take
any appropriate action by return of the
report to the examiner for corrective
action. See 38 C.F.R. § 4.2.
If the benefits sought on appeal are not
granted to the Veteran's satisfaction, he
and his representative, should be
provided with an appropriate Supplemental
Statement of the Case, and should be
given an opportunity to respond.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs